Geiger v. Aetna Insurance Co.

HERNDON, J.

Plaintiff appeals from the judgments of dismissal entered in two actions which she brought against respondent Aetna Insurance Company. In each action plaintiff sought to recover under a contract of insurance issued by respondent. These actions were dismissed for want of prosecution. (Code Civ. Proc., § 583.) The judgments of dismissal were entered 4 years, 11 months and 21 days, and 4 years and 10 months, respectively, after the actions were commenced.

Appellant filed her actions on April 26, 1960, (Civil 29904), and May 17,1960 (Civil 29905). Although the duty to prosecute an action with diligence always abides with the plaintiff, appellant’s affidavits filed in opposition to respondent’s motions to dismiss fail to make even a flimsy showing of diligence. Indeed, the record presents a classic case of neglect and dilatory conduct. As recently restated in

Bella Vista Dev. Co.

v.

Superior Court,

223 Cal.App.2d 603, 614 [36 Cal.Rptr. 106], and

Preiss

v.

Good Samaritan Hospital,

171 Cal.App.2d 559, 563 [340 P.2d 661]: ‘‘ ‘The established doctrine in this state is that it is the plaintiff upon whom rests the duty to use diligence at every stage of the proceeding to expedite his case to a final determination. It is true that the defendant may bring about a trial of the ease, but he is under no legal duty to do so. His presence in the ease is involuntary and his attitude toward it is quite different from that of the plaintiff; he is put to a defense only, and can be charged with no neglect for failing to do more than meet the plaintiff step by step.’ [Citation.] ”

Aside from successfully frustrating respondent’s early and continued efforts to complete the taking of her deposition, appellant apparently did nothing during the years her actions were pending to bring them to trial until April 9, 1965, when she obtained an order in each case shortening time for the hearing on her motion for an early trial setting. This was less than a month before the expiration of the 5-year period. This motion came on for hearing before Judge Aubrey Irwin in Department One of the Los Angeles Superior Court on April 13, 1965. The minutes of that department state: “Motion transferred to Dept. 2.” The minutes of department